Richmond Times Dispatch

METRO

Monday, November 23, 1998

BY CARRIE JOHNSON
TIMES-DISPATCH STAFF WRITER

THE RAPIST WANTS NOTES TO BE SECRET

AFTER HOMICIDE TRIAL, HE'S SEEKING CHANGE IN STATE LAW

To Michael Brown, it was the biggest conflict of his professional career.

Brown, a licensed counselor, knew one of his clients, Latonia Beverly, was going to be investigated in connection with a homicide. He knew Beverly, who had previously tried to commit suicide, needed to talk to him. But he also knew anything she said to him could be used against her if his notes were subpoenaed, which is permissible under Virginia law.

That's precisely what happened.

Brown was called as a witness, his notes were read in court and Beverly was convicted of manslaughter in the death of 26-year-old Ericka Harris, her husband's mistress. Jurors recommended she spend 15 years in prison for the crime.

"It was a terrible experience," Brown said. "I felt raped at the end of it."

Now he wants to launch a campaign to reverse the Virginia law that allows therapists' notes to be used in criminal trials. But he knows the odds are stacked against him.

"The truth of the matter is, right now there's an attitude of 'find the criminals and lock them up,'" Brown said. According to the Code of Virginia, communications between counselors and their patients are protected from use in civil cases but can be used in criminal trials. That means therapists can be compelled to testify and their notes can be used in court if one of their clients is charged with a crime.

Brown maintains that the law places a tremendous burden on therapists and the people who need treatment. He said many of his colleagues refuse to take detailed notes for fear they will one day be subpoenaed. But without notes, it's difficult to keep track of a patient's state of mind from week to week and to provide adequate care, Brown said. It also erects a barrier to building trust between patients and therapists and makes it less likely that someone who needs treatment will seek it, he added.

"The conflict is between catching people who have committed criminal acts and healing people whose lives have fallen in such disarray that criminal acts have occurred."

But Duncan Reid, the Henrico County assistant commonwealth's attorney who prosecuted the case against Latonia Beverly, said the law is an important tool in the search to discover the truth about a crime. "You'd lose valuable evidence [if the law was changed]," Reid said. "The public has a right to find out what happened." There are some relationships that are protected under Virginia law, including husband and wife and attorney and client. The lack of complete confidentiality between therapist and patient is a small price to pay to bring a criminal to justice, Reid said. "The question is what is ultimately best for society: the truth or somebody's mental health," he said.

Many family members of those with mental illnesses also favor a limitation on confidentiality between counselors and patients, said Val Marsh, executive director of the Virginia Alliance for the Mentally Ill. Marsh said many times it's sometimes necessary to go to court in order to keep mentally ill people from harming themselves or others., Protecting the conversations between a therapist and a patient might keep the patient from getting needed treatment. "Sometimes you need to make sure someone will follow a treatment plan," she said.

In 1996, the U.S. Supreme Court weighed in on the topic of confidentiality and ruled that federal courts should recognize a psychotherapist-patient privilege.

Writing for the majority, Justice John Paul Stevens said awarding privilege to the communications between therapists and patients serves the public interest by allowing those suffering from mental or emotional problems to seek help without fear of disclosure. "The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance," Stevens wrote.

State courts are less uniform when it comes to confidentiality laws, said Paul Lombardo, associate professor of law at the University of Virginia. "The states are all over the place on this issue," he said. Most states award some degree of privilege to the conversations between therapists and clients, Lombardo said. Many–like Virginia–shield the communications from use in civil trials while permitting it in criminal cases. That can be a problem, Lombardo said. As more people depend on counselors, there is potential for prosecutors to abuse the law to try to gain easy access to personal information. "We rely too much on the notes of therapists when we could get information from other sources," he said.

As for Brown, he'd like to see the General Assembly take another look at Virginia's law and consider giving therapists and their clients added protection. "Every lawyer has confidentiality and every single lawyer knows how critical that is," he said. "This law really says to these people, 'Don't get help.'"

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